Citation Nr: 1104141 Decision Date: 02/01/11 Archive Date: 02/14/11 DOCKET NO. 06-21 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for residuals of a right knee injury, postoperative with degenerative arthritis and medial collateral ligament sprain. 2. Entitlement to an initial rating higher than 10 percent for a left hip condition. 3. Entitlement to an initial rating higher than 10 percent for a cervical spine condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, granting service connection for right knee, left hip, and cervical spine conditions. The Veteran appealed from the initial assigned disability evaluation for each condition. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). During pendency of the appeal, a hearing was held in March 2007 before an RO Decision Review Officer (DRO). In Bryant v. Shinseki, 23 Vet. App. 488, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the DRO who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO noted the basis of the prior determinations and noted the element of the claims that were lacking to substantiate the claims for benefits. In addition, the DRO sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the element necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Upon review of the evidence before it, the Board remanded this case in December 2009. Following the completion of the requested evidentiary development, the matter has now returned to the Board for appellate disposition. FINDINGS OF FACT 1. The Veteran's range of motion in the right knee is no worse than from 0 to 124 degrees, without pain on motion or other functional loss. There is no instability or episodes of recurrent subluxation of the right knee. 2. The service-connected left hip condition is manifested by motion in the plane of flexion well beyond 10 degrees, and abduction well beyond 10 degrees. There also is no showing of malunion of the femur with attendant moderate level of disability. 3. The range of motion retained for the cervical spine has been greater than 30 degrees, and combined range of motion has exceeded 170 degrees. Nor is there objective sign of muscle spasm or guarding with attendant abnormal gait or abnormal spinal contour. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating higher than 10 percent for residuals of a right knee injury, postoperative with degenerative arthritis and medial collateral ligament sprain. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5010, 5260 and 5261 (2010). 2. The criteria are not met for an initial rating higher than 10 percent for a left hip condition. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Codes 5010, 5251-5255 (2010). 3. The criteria are not met for an initial rating higher than 10 percent for a cervical spine condition. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71; 4.71a, Diagnostic Code 5235 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2010), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR 3.159(b)(1) (2010). However, in regard to the claims on appeal for higher initial evaluations for service-connected disability, the requirement of VCAA notice does not apply. Where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). This is the case here, in that the claims for service connection for right knee, left hip and cervical spine disorders have been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. Meanwhile, the RO/AMC has taken appropriate action to comply with the duty to assist the Veteran through obtaining VA and private outpatient treatment records, and arranging for the Veteran to undergo VA medical examinations. See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The development completed includes a February 2010 VA medical examination pursuant to a Board request for a comprehensive orthopedic evaluation providing an accurate and current depiction of service-connected disability. In support of his claims, the Veteran has provided several personal statements. He testified during a DRO hearing. He has not requested a Board hearing in connection with this matter. There is no indication of further available evidence or information to obtain. The record as it stands includes sufficient competent evidence to decide the claims. Under these circumstances, no further action is necessary to assist the Veteran. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims on the merits. Background and Analysis Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2010). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, supra, at 125-26. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Right Knee Thus far, the RO has evaluated the Veteran's service-connected right knee disability under provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5010, pertaining to traumatic arthritis. That diagnostic code in turn provides for evaluation pursuant to Diagnostic Code 5003, for degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis will be rated on the basis of limitation of motion of the specific joint or joints involved. When however, limitation of motion at the joint(s) involved is noncompensable, a 10 percent rating is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under this diagnostic code. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion but x-ray evidence of involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned. A 20 percent rating is assigned where the above is present but with occasional incapacitating exacerbations. Under further applicable rating criteria, Diagnostic Code 5260 pertains to limitation of leg flexion, and provides for a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating requires flexion limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; and the highest available 30 percent rating requires flexion limited to 15 degrees. Diagnostic Code 5261 provides that limitation of motion of the knee will be assigned a noncompensable rating when extension is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a maximum 50 percent rating is assigned when extension is limited to 45 degrees. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, "other" knee impairment is evaluated based upon recurrent subluxation and/or lateral instability. This diagnostic code provides that a 10 percent disability rating is warranted for slight disability, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. VA's Office of General Counsel in a precedent opinion determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding (at 38 C.F.R. § 4.14), regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). VAOPGCPREC 23-97 further held that a claimant may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively. See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997). In order for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable, but must meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998). The Veteran underwent a VA Compensation and Pension examination in December 2004 for general medical evaluation, including of the bilateral knees. Upon physical examination, the knee joints' appearance was abnormal on the right side with findings of healed surgical scar, and patella hypertrophy. Range of motion testing revealed right knee mobility from 0 to 140 degrees, and not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Drawer test and McMurray's test were within normal limits. The diagnosis given was degenerative arthritis, right knee, medial collateral ligament sprain, status post right quadriceps injury (healed). The subjective factor was right knee pain. The objective factors were abnormal x-ray and MRI findings. Thereafter, in March 2007, the Veteran underwent VA examination by an orthopedist, during which he reported having had constant weakness and pain involving the right knee. He reported that sometimes the right knee would pop, but denied any swelling, locking or instability. Aggravating factors were walking and traversing stairs, while alleviating factors were medications. He did not use a cane, crutches, or a brace. Objective examination revealed a well-healed surgical incisional scar noted anterior measuring about 3.5 inches in length, with no keloid formation of the scar, or tenderness noted. There was no soft tissue swelling or effusion of the right knee noted. Range of motion revealed right knee flexion to about 130 degrees, and extension completely to 0 degrees. Deep knee bends could not be performed normally. No instability of the right knee noted. An x-ray impression was of advanced degenerative osteoarthritis of the right knee. The diagnosis was of advanced post-traumatic degenerative arthritis of the right knee. The estimated functional loss due to pain was mild. Joint function was additionally limited by pain, fatigue, and weakness secondary to repetitive use and flare-ups, and at that time functional loss was estimated as "moderate," or "50 percent." A VA orthopedic examination was completed in February 2010, pursuant to the Board's prior remand request. The Veteran complained of chronic right knee stiffness, intermittent pain and inability to run for exercise. The treatment modalities consisted of over-the-counter medication and bracing. Reported symptoms included pain and stiffness. They did not include deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, effusions, or inflammation. There were no incapacitating episodes of arthritis. On physical examination, gait was normal, and there was no evidence of abnormal weight bearing. There was no crepitation, findings consistent with Osgood-Schlatter's disease, mass behind the knee, clicks or snaps, grinding, instability, patellar or meniscus abnormality, abnormal tendon or bursae, or other knee abnormality. Range of motion was from 0 to 124 degrees, with no evidence of pain or additional limitations following repetitive motion. There was no joint ankylosis. An x-ray showed moderate narrowing of the medial joint compartment, slightly increased since a previous study. No acute fractures or dislocation was seen, no joint effusion was evident, and soft tissues were unremarkable. The diagnosis was of degenerative arthrosis right knee. Having reviewed the preceding information, the Board sees fit to continue the assignment of an initial 10 percent rating for a right knee disorder. In all measured areas of relevant symptomatology, the Veteran retained significant functional capacity in the right knee such that no higher rating than 10 percent has been warranted at any point since service connection was granted. As to the component of limitation of motion, a starting point for application of the pertinent rating criteria, the Veteran has demonstrated at worst, range of motion in the right knee from 0 to 124 degrees. There has been no additional limitation of motion occasioned due to pain, or for that matter weakness, incoordination, or any other factor utilized in determining functional loss. Thus, even when applying the dictate of the DeLuca decision, the actual functional capacity of the knee is no worse than the objective measurements of limitation of motion initially shown. See too, 38 C.F.R. §§ 4.45, 4.59. The Board recognizes that the March 2007 VA examiner found there to be "moderate" or "50 percent" functional loss; unfortunately, however, these are not terms with any recognizable meaning when evaluating limitation of motion, as they do not practically correspond to an actual measured range of motion. Ultimately, the Board ascribes greater weight to the more recent VA examination study in February 2010 which objectively characterized the lost degrees of motion due to pain as essentially none. On the whole then, these findings would not even support a compensable evaluation on their own, under Diagnostic Codes 5260 or 5261. Therefore, limitation of motion will not provide the basis for an increased evaluation in this case. Turning to the next basis for rating this disability, "other impairment" of the knee, pursuant to Diagnostic Code 5257, the Veteran has not shown moderate impairment, as would be required to assign the next higher 20 percent rating. Indeed, he has consistently denied, nor been shown to manifest, any signs of instability, locking, or episodes of dislocation or subluxation. Whereas the disability for which the Veteran is service-connected refers to a medial collateral ligament sprain, there is no current sign of such impairment. In short, the function of the right knee outside the realm of limitation of motion is relatively normal. Meanwhile, though the Veteran's right knee condition is post- operative, there are no additional signs of compensable manifestations. The Veteran has a well-healed post-surgical scar without any tenderness, or attendant limitation of function that would merit a compensable evaluation under the rating criteria for scars. See 38 U.S.C.A. § 4.118, Diagnostic Codes 7802-7805. Nor is there any objective indication of removal of the right knee cartilage following knee surgery, as would be rated under Diagnostic Code 5259. Accordingly, there is no basis under the available rating criteria to assign more than a 10 percent evaluation for a service-connected right knee disorder on the basis of objective symptomatology shown. Left Hip The Veteran's left hip disorder has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5010 for traumatic arthritis, which as stated is to be rated under provisions pertaining to degenerative arthritis under Diagnostic Code 5003. Those additional potentially applicable diagnostic codes include Diagnostic Code 5251, for limitation of extension of the thigh, under which a single 10 percent rating is assignable for extension limited to 5 degrees. Under Diagnostic Code 5252, for limitation of flexion of the thigh, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating where limited to 30 degrees; a 30 percent rating where limited to 20 degrees; and a maximum assignable 40 percent rating, where limited to 10 degrees. Diagnostic Code 5253 provides for a 10 percent evaluation when there is limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. Normal range of motion for the hips consists of flexion to 125 degrees, extension to 0 degrees, and abduction to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Meanwhile, Diagnostic Code 5255, malunion of the femur, a slight level of knee or hip disability warrants a 10 percent rating; a moderate disability, a 20 percent rating; and a marked disability, a 30 percent rating. A fracture of the surgical neck of the femur, with a false joint, corresponds to a 60 percent rating. Fracture of the shaft or anatomical neck with nonunion, without loose motion, and if weightbearing is preserved with the aid of a brace also warrants a 60 percent rating; whereas a fracture of this type with nonunion, with loose motion (spiral or oblique fracture warrants an 80 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5255. The words "slight," "moderate," and "marked" are not defined in the above rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Upon a VA general medical examination of December 2004, it was noted objectively that the general appearance of the hip joint on the left side was within normal limits. Range of motion testing revealed left hip flexion to 115 degrees, with pain beginning at 100 degrees. The Veteran also demonstrated extension to 20 degrees, abduction to 30 degrees, adduction to 25 degrees, external rotation to 45 degrees, and internal rotation to 15 degrees, all with no onset of pain. Range of motion was additionally limited after repetitive use by pain (as indicated), but not by fatigue, weakness, lack of endurance, or incoordination. The diagnosis given was of degenerative arthritis left hip. The subjective factor was left hip pain. The objective factors were painful motion, and abnormal x-ray findings. The April 2006 report from Dr. M.F., affiliated with a private orthopedic clinic, provides an assessment of end stage osteoarthritis of the left hip. It was observed that the Veteran might need a total hip replacement at some point. Upon re-examination in March 2007 by an orthopedist, the Veteran reported continued pain in his left hip, for which he utilized stretching exercises, ice, and physical therapy. He described constant pain at the level of 10/10 depending on his activity level. Aggravating factors included walking, lifting, going up steps, and prolonged sitting in a vehicle. The hip hurt especially when carrying weight. He stated that the left hip gave out sometimes. Physical exam of the left hip revealed some tenderness anteriorly in the anterolateral aspect. Range of motion consisted of left hip flexion to 115 degrees, abduction 40 degrees, adduction 35 degrees. There was slight pain associated with flexion and abduction. An x-ray provided an impression of advanced degenerative osteoarthritis left hip. The diagnosis was of advanced degenerative joint disease of the left hip. The functional loss due to pain was considered minimal and/or mild. In a somewhat contradictory finding, the VA examiner then characterized functional loss as "moderate," or "50 percent." On further examination of February 2010, the Veteran described left hip pain with pain in the hip socket, problems with prolonged sitting, and aching pain and stiffness while walking. The current treatments were ibuprofen, and physical therapy. There was reported pain and stiffness. Reported symptoms did not include deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, effusions, or inflammation. Range of motion was measured at left flexion to 100 degrees, extension to 20 degrees, abduction to 31 degrees. The Veteran could cross left leg over right, and could toe out more than 15 degrees. There was no objective evidence of pain with active motion on the right side. There was no objective evidence of pain or additional limitation following repetitive motion. An x-ray revealed severe narrowing of the superior lateral left hip joint space with associated reactive sclerosis and subchondral cystlike changes. Large marginal osteophytes were noted around the femoral head fovea as well as at the inferior femoral head/neck junction. There was no evidence of femoral head osteonecrosis. Soft tissues were unremarkable. The diagnosis was degenerative arthrosis left hip. The Board concludes upon application of the relevant rating criteria that a 10 percent evaluation remains proper for a left hip condition. Several of the applicable diagnostic codes are premised upon limitation of motion. To warrant the next higher evaluation of 20 percent, Diagnostic Code 5252 would require limitation of flexion of the thigh to 30 degrees. Diagnostic Code 5253 would require limitation of abduction with motion lost beyond 10 degrees. (Diagnostic Code 5251 provides for no more than a single 10 percent evaluation for limitation of extension of the thigh, and thus would not provide the relief sought in this instance.) Following continued range of motion tests throughout the time period under review, the Veteran has never demonstrated, or been within proximity to having limitation of motion within the ranges specified above. At its worst, forward flexion of the left hip was to 100 degrees on the February 2010 VA examination, with no evidence of pain or additional factors providing further limitation upon motion. Meanwhile, hip abduction has never been worse than 30 degrees, as was shown on the initial December 2004 VA exam. Simply stated, a rating based upon limitation on motion does not account for any higher rating in this case. The existing 10 percent evaluation assigned under Diagnostic Code 5003 for noncompensable limitation of motion associated with degenerative arthritis remains the full extent to which limitation of motion is a factor in rating the severity of a left hip condition. Also potentially available for application apart from the diagnostic codes premised upon limitation of motion is Diagnostic Code 5255 for malunion of the femur, pursuant to which malunion with a moderate level of disability of the knee or hip will warrant a 20 percent evaluation. Here, however, while the x-ray findings show significant narrowing of the left hip joint spaces, there is no indication of actual hip joint malunion. Moreover, the Veteran's array of symptomatology has consistently been absent such manifestations as deformity, giving way, instability, weakness, incoordination, joint subluxation, or joint inflammation. Apart from pain and joint stiffness, there are no ongoing problems with the left hip joint itself. The Board cannot find that there is a moderate level of disability in this instance, and a mild level of severity would be the more accurate characterization. While in the remote history one private physician even recommended future left hip replacement, the preponderance of the evidence in its entirety substantiates a lesser degree of severity of service-connected disability, particularly the continued VA examination history. See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present."). See also, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). For these reasons, the existing 10 percent evaluation for a left hip disorder sufficiently accounts for the current severity of service-connected disability. Cervical Spine The cervical spine disorder in question is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5235 for a vertebral fracture or dislocation. Under applicable rating criteria, this disability is to be evaluated in accordance with VA's General Rating Formula for Diseases and Injuries of the Spine. This rating formula provides for the assignment of a 10 percent rating when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of the height. A 20 percent rating is for assignment upon a showing of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or a combined range of motion not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is for assignment for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating may be assigned due to unfavorable ankylosis of the entire spine. Under notes to the rating formula: Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. Upon VA general examination in December 2004, evaluation of the cervical spine revealed no evidence of radiating pain on movement, with no evidence of muscle spasm. There was tenderness to the right posterior aspect. Range of motion was noted as flexion to 45 degrees, with pain occurring at 40 degrees; extension to 45 degrees, with pain occurring at 40 degrees. There was also pain-free right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right rotation 70 degrees, left rotation 80 degrees. Range of motion was additionally limited after repetitive use by pain (as indicated), but not by fatigue, weakness, lack of endurance and incoordination. The diagnosis given was C7 spinous process fracture, degenerative arthritis, degenerative disc disease of the cervical spine. The subjective factors were neck injury and pain. The objective factors were tenderness, painful motion, and abnormal x-ray findings. On VA orthopedic examination in March 2007, it was reported that the Veteran had pain at level 6 to 8/10 constantly in the neck region. There were reported muscle spasms sometimes. Aggravating factors were working on a computer, prolonged driving with looking over the right shoulder, lifting, and bending. There was no history of any cervical radiculopathy symptoms. Alleviating factors were medication, stretching and strengthening exercises, relaxation and ice treatment. An objective exam of the cervical spine revealed mild tenderness over the right paracervical muscles. There was no tenderness noted over the cervical spine. Range of motion revealed forward flexion to 50 degrees, extension to 40 degrees, right and left lateral flexion to 35 degrees, right and left lateral rotation 40 degrees. There was slight pain associated with right lateral movement. Upper extremity muscle strength was normal and symmetrical in both upper extremities. Deep tendon reflexes were 1-2+ bilaterally symmetrical and there was good grip and strength in both hands. An x-ray revealed an old fracture involving the posterior elements (spinous process) of C7. There was also spondylosis of the cervical spine at C5 through C7 manifested by osteophytes. The diagnosis given was of old fracture of spinous process of C7, with degenerative spondylosis most marked at C5 through C7 levels. Functional loss due to pain was estimated as mild to moderate. On examination again in February 2010, the Veteran complained of stiffness and pain, worse with more than usual exertion. There was no reported history of numbness, paresthesias, or unsteadiness. There was no reported history of fatigue, decreased motion, stiffness, weakness, or spasms. There was cervical pain, dull aching, moderate and constant in severity. There were no incapacitating episodes of spine disease. Inspection of the spine showed normal posture, head position and symmetry. There were no abnormal spinal curvatures, including gibbus, kyphosis, list, or scoliosis. There was no ankylosis. Upon objective physical examination, the cervical sacrospinalis showed no spasm, atrophy, guarding, pain with motion, tenderness or weakness. A detailed motor exam of the upper extremities was normal, as was a detailed sensory and reflex exam. Range of motion testing revealed forward flexion to 31 degrees, extension to 43 degrees, right lateral flexion to 28 degrees, left lateral flexion to 21 degrees, right lateral rotation to 46 degrees, left lateral rotation to 45 degrees. There was no objective evidence of pain or additional limitations on active range of motion. Lasegue's sign was negative. According to an x-ray, vertebral alignment was anatomic. There was an old fracture of spinous process of the C7 with pseudo joint formation. There were moderate degenerative changes at C5-6 and C6-7 with moderate facet joint arthropathy at C7-T1. Prevertebral soft tissues were within normal limits. The VA examiner summarized that the prior vertebral body fractured was C7, and that the percentage loss of height was less than 10 percent. The diagnosis was degenerative arthrosis, degenerative disc disease cervical spine. Based on the above evidence, the current assigned 10 percent for a cervical spine disorder remains the proper evaluation. As set forth above, pursuant to the applicable rating formula, a 20 percent rating may be establish upon several bases, with forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Objectively, there is none of the foregoing shown. The most pronounced limitation of motion demonstrated has been upon VA examination of February 2010, capacity for forward flexion to 31 degrees, with no additional pain or basis to consider further limitation of motion attributable to functional loss. This falls outside the ambit of what will warrant a higher rating. Meanwhile, combined range of motion on all three examinations exceeded 170 degrees for the cervical spine. Moreover, there has not been muscle spasm or guarding of any kind, much less with aggravating factors such as abnormal gait or abnormal spinal contour. It warrants mentioning as well that the original precipitating condition, a vertebral fracture at C7, has since healed, with less than 10 percent of vertebral height lost and no directly attributable symptoms or manifestations apart from the extent of limitation of motion shown. In addition, there is no further showing of separate compensable symptomatology of a neurological variety in the form of paresthesias or radiating pain from the site of a cervical spine disorder. Under these circumstances, therefore, a 10 percent evaluation remains correct under provisions of the VA rating schedule. Conclusion The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In this case, the Veteran has not shown that his service- connected orthopedic disabilities under evaluation have caused him marked interference with employment, meaning above and beyond that contemplated by his current schedular rating. Indeed, as the February 2010 VA examination report shows, he remains employed on a full-time basis. The Veteran's service-connected disorders also have not necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular schedular standards. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238- 9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claims for increased rating for right knee, left hip and cervical spine disorders. This determination takes into full account the potential availability of any "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claims under review. The preponderance of the evidence is against the claims, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial rating higher than 10 percent for residuals of a right knee injury, postoperative with degenerative arthritis and medial collateral ligament sprain, is denied. An initial rating higher than 10 percent for a left hip condition is denied. An initial rating higher than 10 percent for a cervical spine condition is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs